Exhibit
10.4
LOAN MODIFICATION
AGREEMENT
(Loan No.
9117000148)
This Loan Modification Agreement
("Modification") is made and entered as of June 20, 2007, between
CALIFORNIA BANK & TRUST , a California banking
corporation ("Bank"); ICON INCOME FUND EIGHT B L.P.; ICON INCOME
FUND NINE, LLC; ICON INCOME FUND TEN, LLC; and ICON LEASING
FUND ELEVEN, LLC ( separately and collectively " Original
Borrower”), and ICON LEASING FUND TWELVE, LLC
(“Added Borrower”). As used herein the term
“Borrower” means, separately and collectively, the
Added Borrower and the Original Borrower.
RECITALS
A. Pursuant
to the terms of a Commercial Loan Agreement ("Loan Agreement")
between Bank and Original Borrower, dated as of August 31, 2005,
Bank agreed to make a revolving line of credit in the principal sum
of $17,000,000 (“Line of Credit”) available to Original
Borrower; capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Loan
Agreement.
B. The
Line of Credit was evidenced by a promissory note ("Note") of even
date with the Loan Agreement, executed by Original Borrower in
favor of Bank.
C. Original
Borrower's indebtedness under the Loan Agreement was secured by
assets of Original Borrower under a separate Security Agreement,
dated August 31, 2005 ("Security Agreement" executed by each entity
comprising Original Borrower).
D. Under
the terms of a Loan Modification Agreement, dated as of December
26, 2006, executed by Original Borrower and Bank (“Prior
Modification”), the Loan Agreement was amended.
D. In
response to Borrower's request and in reliance upon Borrower's
representations made to Bank in support thereof, Bank has agreed to
modify the terms of the Loan Agreement as set forth in this
Modification.
AGREEMENT
NOW, THEREFORE, in consideration of the premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Original Borrower,
Added Borrower and Bank agree as follows:
1. Adoption
of Recitals . Borrower hereby represents and
warrants that each of the recitals set forth above is true,
accurate and complete.
2.
Acknowledgment of Debt . Borrower acknowledges
that, to the best of Borrower’s knowledge, there are no
claims, demands, offsets or defenses at law or in equity that would
defeat or diminish Bank's present and unconditional right to
collect the indebtedness evidenced by the Note and to proceed to
enforce the rights and remedies available to Bank as provided in
the Note, Loan Agreement, Security Agreement, Prior Modification or
any other instrument, agreement, or document given in connection
with the Line of Credit (collectively the "Loan Documents") or by
law. Until the Line of Credit is paid in full, interest
and other charges shall continue to accrue and shall be due and
owing.
3.
Representations and Warranties . Borrower hereby
represents and warrants that no material default exists under the
Line of Credit and no event of default, breach or failure of
condition has occurred or exists, or would exist with notice or
lapse of time, or both, under any of the Loan Documents that could
reasonably be expected to have a Material Adverse Change, and all
representations and warranties of Borrower in this Modification and
the other Loan Documents are true and correct in all material
respects as of the date of this Modification (other than any such
representations and warranties that, by their terms, are
specifically made as of a date other than the date hereof) and
shall survive the execution of this Modification.
4.
Modification of Loan Documents . The Loan
Documents are hereby supplemented, amended and modified to
incorporate the following, which shall supersede and prevail over
any existing and conflicting provisions thereof:
(a) Section 1.1
of the Loan Agreement, entitled "Definitions" is modified as
follows:
(i) By deleting
the definition of “Borrower” and replacing it with the
following:
“Borrower” shall mean ICON Income
Fund Eight B L.P.; ICON Income Fund Nine, LLC; ICON Income Fund
Ten, LLC; ICON Leasing Fund Eleven, LLC; and ICON Leasing Fund
Twelve, LLC, separately and collectively.
(b) Section 8.3
of the Loan Agreement, entitled “Financial
Information,” is modified by deleting subsection (a) thereof
and replacing it with the following:
As soon as available, and in any event within
one hundred five (105) days (onehundred twenty (120) days in the
case of Manager) after the end of each fiscalyear, Borrower’s
and Manager’s unqualified CPA audited annual financial
statements with balance sheets, income statements and operating
budgets. Statements shall be prepared by Hays &
Company, LLP or other accounting firm reasonably acceptable to
Bank.
(c) The Note is
superseded and replaced by the Amended Note, described below, and
all references in the Loan Documents to “Note” shall
mean and refer to the Amended Note.
(d) The Security
Agreement, as previously amended,
